Lesbian ex-partner has parental rights, Florida Supreme Court rules

Couple lived in Brevard County

TALLAHASSEE, Fla. - The Florida Supreme Court on Thursday ruled a Central Florida woman who donated her egg to her lesbian partner, who then gave birth to the resulting child they intended to raise together, does have parental rights to the child even after the adults' relationship soured and the couple separated.

The court, in a 4-to-3 decision, said the biological mother should be treated in the courts similarly to an unwed biological father who wishes to play a role in the life of a child he fathered.

The court ruled the Florida law that prevented the biological mother from asserting parental rights was unconstitutional, violating the due process and equal protection clauses of both the U.S. and Florida constitutions, as well as the privacy provisions of the state constitution.

The court's majority said it relied on "long-standing constitutional law that an unwed biological father has an inchoate interest that develops into the fundamental right to be a parent protected by the Florida and United States constitutions when he demonstrates a commitment to raising the child by assuming parental responsibilities."

The decision means a trial court will now decide such issues as parental time-sharing and child support, based on the best interests of the child – just as it would in any other custody matter involving unmarried parents.

The center of the dispute, a now-9-year-old girl, was born in Brevard County in January 2004. Both her birth and biological mothers had, by then, been in a committed relationship for nine years and they agreed one would donate the egg, which would be fertilized and carried to term by the other, who was infertile.

The child lived with both parents, who owned a house together and a shared a joint bank account, until the couple separated in May 2006. The biological mother still provided support payments and continued a relationship with the child until the adults' relationship deteriorated further and the birth mother cut off all contact in December 2007.

Together they sent our birth announcements, declaring, "We proudly announce the birth of our beautiful daughter" and both participated in the girl's baptism and early education decisions, the court noted.

But after more than two years, the couple's relationship soured and, "as is all too commonly seen in child custody proceedings, one parent (the birth mother) severed the other parent's … contact with the daughter the couple had jointly planned for, conceived, and raised as a family," wrote Justice Barbara Pariente.

After locating the birth mother and child in Australia, the biological mother sought to establish parental rights and a declaration that Florida's assisted reproductive technology statute did not apply to her, even though it claims egg donors relinquish any claim to parental rights or obligations to the resulting child. There are exceptions for a "mother and father" who commission someone to carry a baby to term, but not for same-sex partners who do so -- as this couple did.

A Brevard Circuit judge agreed with the birth mother -- finding the law as written prevented the biological mother from obtaining parental rights -- but expressed hope an appellate court would overturn his ruling.

An intermediate appeals court did reverse the trial court and the Florida Supreme Court agreed Thursday that the statute was unconstitutional.

Pariente -- joined by justices Peggy Quince, Jorge Labarga and James Perry -- was careful to distinguish the ruling in this case from those where a sperm or egg donor who had no interest in raising the child would later assert rights to the child. The law refers to a mother and father who contract with an egg or sperm donor to help produce their child as a "commissioning couple."

"Our resolution of the constitutional issues presented in this case does not undermine the statutory protections or certainty provided to commissioning couples in any way," Pariente wrote for the majority.

The opinion notes the case involves "an unmarried woman who was part of a same-sex couple seeking the assistance of reproductive technology to conceive a child to jointly raise and who provided biological material to her partner with the specific intent to become a parent."

By saying "mothers and fathers" have parental rights to a child born with the assistance of in vitro fertilization, the statute "unconstitutionally creates an unreasonable classification based on sexual orientation," the court.

"The legal parameters and definitions of parents, marriage, and family have undergone major changes in the past several decades," the court noted, dating to the lifting in 1967 of Virginia's ban on interracial marriages. The court noted in passing the recent U.S. Supreme Court decision striking down the federal Defense of Marriage Act, which found federal law may not infringe on the rights of same-sex couples "to enhance their own liberty" and to enjoy protection "in personhood and dignity." But, the opinion said, that decision on DOMA did not "impact our ultimate analysis."

In dissent, the court's three more conservative justices – Chief Justice Ricky Polston, R. Fred Lewis and Charles Canady – disagreed at the outset with the majority's use of the term "biological mother" for the woman who provided the egg to be fertilized. Polston, instead, used the term "egg donor."

The dissenters warned the majority it could be accused of " improperly constitutionaliz(ing) their own preferences and thereby impos(ing) them upon the rest of the citizenry in perpetuity." They argued the constitutional claims analyzed by the majority were not properly raised and preserved in the lower courts and, therefore, should not be considered by the Supreme Court.

They also claim the egg donor waived her claims to the child when she signed standard informed consent forms, but the majority said she did not waive her rights as a donor who intended to raise the child with the birth mother.

The dissent claim the majority's analysis has "no logical end point" or "obvious stopping point."

To illustrate that logic, Polston writes in dissent: "Does this mean that a child could have a constitutional right to two mothers and father (or two fathers), perhaps where a married, heterosexual couple agrees to and then subsequently raised a child with the egg donor, an egg donor who is in a committed relationship with a man other than the genetic father?"

The decision comes in a state that forbids recognition of same-sex couples and once prohibited homosexuals from adopting children.

But the majority found neither of those provisions applied here.

"The state would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent," the majority wrote.

The parties have remained confidential in court filings: the birth mother is known as D.M.T.; the biological mother as T.M.H.

Robert Segal, attorney for T.M.H, said his client "was delighted. We're all very happy here by the court's decision. The court is recognizing the value of the parental relationship for what it is, as opposed to singling people out based on their sexual orientation."

Segal said his client has not seen her daughter since December 2007, but he hoped to confer with opposing counsel and the trial court judge next week to begin to work out an arrangement where "she will get to see her daughter as quickly as possible."

A call to D.M.T.'s attorney has not been returned.

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